Punjab-Haryana High Court
Hari Dass Chela Vrindavan Dass Chela ... vs Shree Shiv Mandir Avam Gram Sudhar ... on 29 August, 2013
Author: K. Kannan
Bench: K. Kannan
CR No. 5199 of 2013 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CR No. 5199 of 2013
Date of decision: August 29, 2013
Hari Dass Chela Vrindavan Dass Chela Ganga Dass
....... Petitioner
Versus
Shree Shiv Mandir Avam Gram Sudhar Samiti and another
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Lokesh Sinhal, Advocate
for the petitioner.
****
K. Kannan, J (oral).
1. The revision petition is against the order allowing for an impleadment of a third party Society, who is arrayed as first respondent herein. In the suit filed by the plaintiff-petitioner herein, the third party sought an impleadment contending that the plaintiff cannot have the relief of substitution of his name as a bhondedar and that the property really vests in the proprietors, who have constituted the Society. The first respondent had sought for impleadment as a plaintiff, the Court has directed that he would only have cited as a defendant.
2. Counsel for the petitioner has principally two objections; i) the plaintiff is the dominus litus and is entitled to file a suit against such party against whom he wants a relief and he cannot Archana Arora 2013.08.31 16:14 I am the author of this document High Court Chandigarh CR No. 5199 of 2013 2 be forced to prosecute against a person whom he has chosen not to implead ; ii) the first respondent had earlier filed a suit for declaration and that the suit was dismissed for default. The application to restore the suit was filed and was also dismissed. The plaintiff himself had filed a suit against the proprietors and that suit was also decreed. The counsel states that there is an appeal against the suit. Since attempt of the proprietors stake a claim to the property as a party was itself dismissed in two independent proceedings, one in the suit filed by the plaintiff against the proprietors and the another by the dismissal of the suit filed by the Society for default, the presence of the first respondent will cause very serious prejudice.
3. In revision under Article 227 of the Constitution, it would only be appropriate that I see whether there is any serious prejudice that could be caused to the plaintiff and that there is any illegality in the order passed by the trial Court for intervention in revision. I find neither of the two as arising in this case. In a suit where the plaintiff states that as a bhondedar his name must be duly entered and the entry made in the name of Municipal Corporation was not correct, if the proprietors seek for an intervention to contend that the plaintiff is not the person in whose name the entry should be made, it is only appropriate that the objection of such a person is also heard. The first respondent may not be a necessary party, for, it is possible for the plaintiff to seek a declaration against any person whom he chooses and it is left to any other third party to come with his own suit for assertion of its title. In this case when the entry in official books are sought to be mutated, Archana Arora 2013.08.31 16:14 I am the author of this document High Court Chandigarh CR No. 5199 of 2013 3 the appropriate procedure shall be that anyone who may stake an interest in the property is also heard. It is in that context that impleadment of the first respondent could be seen as a proper party. The dismissal of the suit for default and the application for restoration also getting dismissed would result in a bar of a fresh suit at the instance of the first respondent. Such a bar must be taken to be peculiar in the context of Order 9 Rule 9 CPC and cannot take away a right of defence to set up a claim to title in defence in any other suit. The bar in Order 9 Rule 9 is only for a plaintiff and not as a defendant. The plaintiff's decree in his own suit against the proprietors cannot conclude the issue, for, admittedly there appears to have been an appeal against the decree and the decree has not become final. In such a situation, the impleadment of the first respondent ought not to be taken as an order which is in any way illegal.
4. I will find no cause for an intervention and the revision petition is dismissed.
(K. KANNAN) JUDGE August 29, 2013 archana Archana Arora 2013.08.31 16:14 I am the author of this document High Court Chandigarh